Q&A: Trump’s Executive Order on ‘Sanctuary Jurisdictions’

The order addresses immigration enforcement inside the United States and includes directives regarding “sanctuary jurisdictions.”(Published Jan 30, 2017)

President Trump signed an executive order on Jan. 25 entitled “Enhancing Public Safety in the Interior of the United States.” The order addresses immigration enforcement inside the United States and includes directives regarding “sanctuary jurisdictions.”

This order raises questions for cities across the country. While many of the details are unclear at the moment, the League has put together the following questions and answers to help cities understand this order.

Q: What is a sanctuary jurisdiction? A: Section 9 of the executive order defines any jurisdiction in violation of 8 U.S.C. § 1373 as a sanctuary jurisdiction. However, the order also grants authority to the secretary of Homeland Security to designate jurisdictions as sanctuary jurisdictions. It is not clear if this means the secretary of Homeland Security is tasked with determining compliance with 8 U.S.C. § 1373, or if the secretary has the authority to identify cities as sanctuary jurisdictions for reasons other than non-compliance with 8 U.S.C. § 1373.

Q: What does 8 U.S.C. § 1373 require? A: 8 U.S.C. § 1373 prohibits any local government or official from enacting restrictions on sending information to, or receiving information from, the Immigration and Naturalization Service regarding the citizenship or immigration status of any individual. Guidance was released by the Department of Justice, prior to the issuance of President Trump’s executive order, regarding compliance with the statute. The DOJ considered compliance with the statute in more detail in a memo from May of 2016.

Q: Is compliance with 8 U.S.C. § 1373 a new requirement? A: No, compliance with 8 U.S.C. § 1373 is not new. In fact, the previous administration’s Department of Justice had begun requiring proof of compliance from certain jurisdictions. However, the executive order implies a more thorough analysis of compliance and greatly expands the scope of potential funding losses. Previously, proof of compliance was only required for certain DOJ grant programs, whereas the executive order seems to imply proof of compliance is necessary for all federal grant funding.

Q: What happens if a jurisdiction is deemed a sanctuary jurisdiction? A: The executive order indicates that any entity that is willfully violating 8 U.S.C. § 1373 is ineligible to receive federal grants. Current case law suggests that federal funds that could be withheld must be closely related to the function the city/state is not performing. In other words, if a sanctuary jurisdiction faces the loss of funds, the funds would need to have been for a purpose related to immigration. Otherwise, the court has said, it is extortion that violates the rights of states. However, the executive order provides that the attorney general or the secretary of Homeland Security may determine that a sanctuary jurisdiction should continue to receive federal funds if the funds are necessary for law enforcement purposes.

Q: Does the executive order require local law enforcement to ask people who are arrested about their immigration or citizenship status? A: There does not appear to be any affirmative duty of law enforcement to inquire about immigration or citizenship status. However, if a jurisdiction collects such information, restrictions cannot be placed on sending the information to immigration authorities.

Q: Does the executive order require city police to hold individuals in custody if Immigration and Customs Enforcement (ICE) requests them to do so? A: On its face, the executive order does not deem jurisdictions who fail to comply with ICE detainer requests to be sanctuary jurisdictions. However, the executive order does direct the secretary of Homeland Security to publish a weekly list of jurisdictions who have failed to comply with ICE detainer requests. Additionally, it is possible that the discretionary definition of a “sanctuary jurisdiction” could mean that failing to comply with ICE detainer requests would result in a jurisdiction being designated as a sanctuary jurisdiction. Such a designation could result in the loss of federal funds, pursuant to the executive order.

Q: Could local law enforcement be asked to enforce federal law? A: Yes, section 8 of the executive order directs the secretary of Homeland Security to reach agreements with state and local officials under 8 U.S.C. § 1357(g). Law enforcement can only enforce federal law under an agreement pursuant to 8 U.S.C. § 1357(g). While this authority has been available for several years, there have not been a significant number of jurisdictions that have signed agreements under the section. At this point, it is not clear if such agreements will remain voluntary, or if jurisdictions will face the loss of federal funding if they fail to reach an agreement.

Q: What is being done to express city concerns about this executive order? A: Municipal leagues around the country are closely monitoring this and other developments on the national level. Specifically, the National League of Cities is working hard to ensure city concerns are heard by the White House.

Q: Is there any state legislation regarding sanctuary jurisdictions? A: A bill (HF 29) has been proposed in the Minnesota House that would require local law enforcement to comply with certain ICE detainer requests. At this point in time, the bill does not have a hearing date and there is no companion bill in the Minnesota Senate.

Q: What should I do for more information? A: Please contact the League with any questions or concerns you may have. We are closely monitoring this issue and will do our best to keep our members informed of any new information we receive.